By Menachem Z. Rosensaft
New York Republican gubernatorial nominee Carl Paladino is far from alone in his bluntly stated opposition to same-sex marriage. Pope Benedict XVI recently reiterated the Vatican’s uncompromising stance on this controversial topic: “The Church cannot approve of legislative initiatives that involve a re-evaluation of alternative models of married life and family,” he said. “They contribute to the weakening of the principles of natural law and … also to confusion about society’s values.” Along the same lines, Rabbi Noson Leiter, executive director of the ultra-Orthodox Torah Jews for Decency, has declared somewhat incongruously that “gay marriage poses an existentialist threat to religious liberty.”
Regardless of anyone’s religious or moral views on homosexuality, a review of the historical bidding seems to be in order. Not all that long ago, Americans also opposed marriages between Whites and African-Americans by a wide margin. In 1912, Rep. Seaborn Roddenberry, Democrat of Georgia, sponsored a constitutional amendment to prohibit interracial marriages on the ground that “intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant.”
As recently as 1958, an African-American woman and a white man were prosecuted in Virginia for the crime of getting married to each other. “Almighty God created the races white, black, yellow, malay and red,” wrote County Circuit Court Judge Leon M. Bazile of Caroline County, Virginia, in his January 6, 1959 ruling sentencing Mildred and Richard Loving to one year in jail (suspended on condition that they leave the State for 25 years). “And,” he continued, “he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
It was not until June 12, 1967, that the United States Supreme Court unanimously reversed the Lovings’ criminal conviction and declared Virginia’s prohibition of interracial marriage to be unconstitutional. Chief Justice Earl Warren wrote in his decision that: “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [Virginia’s prohibition of interracial marriage]. . . . Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. . . . The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Since then, times and attitudes have changed. According to an August 2007 Gallup Poll, more than three in four Americans – to be specific – 77% – approved of interracial marriage. That was up from 4% in 1958, 20% in 1968, and 48% as recently as 1994. In 1958, 94% of White Americans disapproved of marriages between “whites and non-whites,” as the question was then phrased. By 2007, the number of white Americans who disapproved of “marriages between whites and blacks” fell to 19%. Moreover, according to the same poll, 85% of Americans between the ages of 18 and 49 approved of interracial marriages.
According to a 1996 Gallup poll, only 27% of Americans supported, and 68% opposed, the legal recognition of same-sex marriage. By May of 2009, the opposition to such marriage had declined to 57%, with 40% declaring themselves in favor, and as of this past May, the number of Americans opposed had shrunk still further to 53%, while support of legalization of same-sex marriage had risen to 44%.
While the statistics may be interesting from a sociological perspective, we must not allow our constitutional rights to be determined by Gallup polls or popular referenda. Does anyone doubt that a majority of the good people of Virginia might well have voted to retain the ban on interracial marriage in 1967? Should the Supreme Court have deferred to prejudices that, I suspect, even most of the opponents of same-sex marriage find despicable today?
And what about the invidious 1935 Nuremberg Laws that criminalized both marriages and extramarital intercourse between Jews and Aryans in Nazi Germany? Does the fact that most Germans had no problem with this legislation make it any less reprehensible?
We must never lose sight of the fact that divisive rhetoric and demagoguery have consequences. The delegitimization or demonization of any group threatens our society as a whole. Any muddying of the separation of church and state encroaches on the religious liberty now enjoyed by all Americans. Unlike most European countries, the United States has never had an established church or religion, and most Americans like it that way just fine. “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate,” wrote James Madison in 1785 in his Memorial and Remonstrance Against Religious Assessments.
Generations of immigrants, my parents and I among them, came to these shores “yearning to breathe free,” and Emma Lazarus’ poem engraved on the Statue of Liberty does not bestow this privilege exclusively on those of “your tired, your poor, your huddled masses” who happen to be heterosexual.
Menachem Z. Rosensaft is Adjunct Professor of Law at Cornell Law School and Distinguished Visiting Lecturer at the Syracuse University College of Law.